PEOPLE v. FRIERSON

Appellant’s Petition for Review

Cal.August 22, 2016

5236728 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) ) No. Plaintiff and Respondent, ) )} (Court of Appeal No. v. ) B260774) ) _ JAMES BELTON FRIERSON, ) (Los Angeles County Superior ) Court No. GA043389) Defendant and Appellant. ) ) SUPREME COURT FILED AUG 22 2016 PETITION FOR REVIEW Frank A. McGuire Clerk Deputy JONATHANB. STEINER Executive Director * RICHARD LENNON Staff Attorney (State Bar No. 73556) CALIFORNIA APPELLATE PROJECT 520 S. Grand Ave., 4th Floor Los Angeles, CA 90071 Telephone: (213) 243-0300 Fax: (213) 243-0303 Email: rick@lacap.com Attorneys for Appellant/Petitioner S e a : He at h: a B e r g , PETITION FOR REVIEW ........ 0.2 cccttteen ee eens 5 QUESTIONS PRESENTED FOR REVIEW ... 1... e ceceeee eee 6 NECESSITY FOR REVIEW AND ARGUMENT......... 00-20 e eee eee eee 7 PROPOSITION 36 RECALL AND RESENTENCING AND EXCLUSIONS ........ 9 OPINION 2.00.eeeene nent eee ees 21 MODIFICATION 2.0.0... ccceennn eee e eee tens 22 TABLE OF AUTHORITIES STATE CASES Court in People v. Johnson (2015) 61 Cal.4th 674 0...ceecent t nett nent nea 19 People v. Arevalo (2016) 244 Cal.App.4th 846 ..... 2.ceeee eens 7,18, 19, 20 People v. Berry (2015) . 235 Cal.App.4th 1417 2.0... cecette eee 8, 10, 12 People v. Blakely (2014) 225 Cal.App.4th 1042 2.0...eeeeae 8 People v. Bradford (2014) 227 Cal.App.4th 1322,1332-1334 0...eeeee 11 People v. Estrada (8232114) oo...teen ene ee 8 People v. Guerrero (1984) A4 Cal.3d 343 2.cceeeee . passim People v. Johnson (2015) 61 Cal.4th 674 0...eeenent nent e ene eens 11 People v. McGee (2006) 38 Cal.4th 682.0...eeeeee eee 12, 14, 15, 16, 17 People v. Myers (1993) 5 Cal.4th 1193 2...tente ene e eee eens 15 People v. Osuna (2014) 225 Cal.App.4th 1020 2.0...ecceett ence eens 18 People v. Park (2013) 56 Cal.4th 782 00...eetn tee ee eee eens 10 People v. Scott (2014) 58 Cal.4th 1415 0...eeeeee 12 People v. Trujillo (2006) 40 Cal.4th 165 o.ooteetaeee tenes 16 People v. Weidert (1985) 39 Cal.3d 836 0.centtenet ee eee 12 People v. Wilson (2013) 219 Cal.App.4th 500.00... cccccececeececseveeeeeeeeeseeetenne eee, 14 People v. Woodell (1998) 17 Cal.4th 448 000ceee teen eee 14, 15 STATE STATUTES Penal Codesections: 667 ccc cece cece eee et eect esevuetebeetetteeteteeetentennes 9,11 CK:13 1170126 2. occ ccc ccc cece eevee cveeeeetueeeetneneees 9,10, 11, 12, 17 1170.12 oo cece ccc cece ete eee eee eyes eee tneeuteteeteneeneeneeey 9 CALIFORNIA RULES OF COURT Rule: 0005 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,_ ) ) Plaintiff and Respondent, ) No. ) V. ) (Court of Appeal No. ) B260774) JAMES BELTON FRIERSON, ) ) (Los Angeles County Superior Defendant and Appellant. ) Court No. GA043389) ) PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA Pursuantto rule 8.500 (a)(1) of the California Rules of Court, appellant, James Frierson, requests that this Court review the unpublished opinion of the Court of Appeal, Second Appellate District, Division Four, which affirmedthetrial court’s denial ofhis post-judgment, Proposition 36 petition, seeking recall of his third “strike” sentence and resentencing to a second “strike” sentence. A copy of the Court of Appeal’s opinion, filed July 20, 2016,is attached hereto as “Opinion.” A petition for rehearing wasfiled. In response the court, on August 5, 2016, filed a modification ofits opinion. That modification is attached hereto as “Modification.” 5 QUESTIONS PRESENTED FOR REVIEW 1. Under Proposition 36 which provides for the possibility of re-sentencing for defendants not convicted of a current serious offense, can a court review the transcripts of the defendant’s trial, and make findings of fact that the defendant engaged in conduct which disqualifies him from Proposition 36, even though those findings were not madeat the time by the trier of fact, the jury could not reach a verdict on the charges that would have supported such findings, and those findings were completely unnecessary to explain the conviction? 2. Doesthe finding ofineligibility made by the court have to be based on a beyond a reasonable doubt standardoris a preponderancestandard enough? NECESSITY FOR REVIEW AND ARGUMENT INTRODUCTION This is a case in which appellant was found ineligible for recall under Proposition 36 based ona finding that he intended to do harm to the victim of his stalking crime. He had been charged with stalking based on series ofletters that he sent his wife from prison where he wasserving a sentence on an earlier case involving the two of them. While the crime of stalking requires that the defendant make credible threat against the victim, it does not require that he have anyreal or actual intent to carry out that threat or cause actual harm. Nevertheless, the recall court here, instead of determining the nature of appellant’s actual conviction, improperly reviewedthetrial record looking for evidence that apellant intendedto actually inflict great bodily injury on his wife during the commission of the crime, and madeits own factual finding that appellant did so intend. The appellate court foundthat the recall court acted properly and affirmedtherecall court’s decision. Moreover, the appellate court, disagreed with the opinion filed by the appellate court in People v. Arevalo (2016) 244 Cal.App.4th 846, regarding the burden of proof that applies to Proposition 36 recall determinations. Whereas the Arevalo court held the burden to be beyond a reasonable doubt, the instant court held that the burden should only be preponderance of the evidence. Thus, the Court in the instant case has created a direct conflict with the decision of an earlier court regarding the burdenofproof. Theissue of limitations on the use of evidencein a trial court record to make a factual determination in the Proposition 36 recall area, is one question before this Court in 7 People v. Estrada (S232114). In Estrada, the defendant had entered a plea and counts were dismissed as a result. The Proposition 36 recall court nevertheless used the evidence of the dismissed counts to find facts that rendered the defendantineligible for recall. The instant case presents the sameissuealbeit in a different context, namely wherethe factual finding is based on non-elemental conduct, where the issue was contested in the court below, and there wasno verdict by thetrier of fact resolving the factual issue. Furthermore, on the issue regarding limitations on the ability of a Proposition 36 recall court to make factual findings based on evidence that was not presented to support conviction on the only charge of which the defendant was convicted, the appellate courts have split on what limits should apply. (See e.g., People v. Blakely (2014) 225 Cal.App.4th 1042, 1048-1049 [court can makefactual findings based on review ofthe entire record]; People v. Berry (2015) 235 Cal.App.4th 1417, 1426-1427 [the recall court’s inquiry “must focus on the evidence underlying the offense of conviction, not on assessing what other offenses might also have been supported by the evidentiary record.”}) Given the conflict in decisions, and the presence of an important question of law regarding both the burden of proofand limitations on evidence in fact-finding determinations made by Proposition 36 recall courts, this Court should grant review in this case on both questions. PROPOSITION 36 RECALL AND RESENTENCING AND EXCLUSIONS Proposition 36, passed by the votersin the election held November6, 2012, amended the Three Strikes Law to provide for second“strike,” 1.e., doubled sentencing, for defendants whose current offense is neither violent nor serious and whoare not otherwise excluded from benefitting from the statute under specific statutory criteria. Theinitiative amended Penal Code sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2), by adding subdivision (C) to provide that a defendant with two or moreprior “strikes” must be sentenced as a second “striker” under subdivisions (c)(1) and (e)(1), rather than subdivisions (c)(2) and (e)(2), unless the current offense is a violent or serious offense or an enumerated excluded offense or unless the prior strike offense is an enumerated excluded offense. Among the excluded current offenses is one in which the defendant was armed with a weapon during the commission ofthe offense.' Theinitiative also added section 1170.126 to provide that defendants previously sentenced under the Three Strikes Lawto a life sentence, who would have qualified under the initiative for a second “strike” sentence, can file a motion to recall that sentence with the court that sentenced him, be appointed counsel, and obtain a re-sentencing. The defendantis “eligible for resentencing if: .. . (2) The inmate’s current sentence was not 1/ Penal Code section 667, subd. (e)(2)(C)(iii) provides: “During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon,or intended to cause great bodily injury to another person.” (See also section 1170.12, subd. (c)(2)(C) (111) [containing substantively identical language].) imposedfor any offenses appearing in. . . [subdivision(iii)].”. (Emphasis added).? Someofthe exclusionary factors in subdivision iii involve non-elemental conduct. As this Court recently recognized in People v. Conley (2016) _Cal.4th _ (2016 Cal. LEXIS 4578), because exclusion can be based on facts that were never pleaded nor proved in a defendant’s underlyingtrial, Proposition 36 recall courts need to be able to make findings regarding these exclusionary factors,like arming onintent, based on review of records from the defendant’s trial. However,the inquiry is not simply a new factfinding endeavorthat can be based on a review of whatever evidencethe recall court deems appropriate. A sentence is only imposed upon a conviction. Thus, based uponthe plain language of Penal Code section 1170.126, the conviction must controlthe recall court’s inquiry. (See People v. Park (2013) 56 Cal.4th 782, 796 [look first to the language ofthe statute itself to determineits meaning; People v. Weidert (1985) 39 Cal.3d 836, 843 [if statutory languageis clearrely on it]; People v. Berry (2015) 235 Cal.App.4th 1417, 1424-1427 [“inquiry must focus on the evidence underlying the offense for which the defendant was previously convicted” not “what other offenses might also have been supported.” at p. 1427, emphasis original].) Furthermore, this interpretation that limits the inquiry to finding what conductthe conviction reflects rather than permitting a finding of new additional facts comports more 2/ Althoughthis structure is odd in the context of subdivision (111), which starts off with “during the commission of the current offense,”it is most reasonably read to require that “‘an inmates current sentence was not imposed for any offenses, [during the commission of which]” the defendant engaged in disqualifying conduct. 10 closely with the statute’s apparent intent to apply identical rules prospectively and retrospectively, except that retrospective application can be denied upona finding of dangerousness. (See People v. Johnson (2015) 61 Cal.4th 674, 691.) As this Court noted in Johnson,“except for the resentencing statute’s provision granting the trial court authority to deny resentencing if reducing the sentence would pose a dangerto the public, the resentencing statute’s exceptions to the new sentencing rules are the same factors that exclude a defendant from being sentenced pursuant to Proposition 36’s more lenient provisions. [Citation] This parallel scheme suggests that the sentencingrules are intended to be identical except in that one respect.” (Jbid.) For prospective applications, the conduct-based exclusionary factors must be pleaded and proved beyond a reasonable doubt. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, (c)(2)(C).) Practical and fairness concerns require that retrospective application not involve new mini-trials on the previously uncharged conduct-based exclusions, and Penal Codesection 1170.126 does not state a new pleading and proof requirement while still applying the conduct-based exclusionsto recall eligibility. (See People v. Bradford (2014) 227 Cal.App.4th 1322,1332-1334, 1336-1339.) From the outset, to make determinations as to whether conduct underlying a prior conviction renderedit a “strike” for purposes of the Three Strikes Law,the rules set forth in People v. Guerrero (1984) 44 Cal.3d 343 and its progeny have been employed. Becausethe retrospective determination of whetherthe current offenseis a serious felony for purposes of Proposition 36 is a nearly identical endeavor, these rules are apt for the eligibility determination here (see People v. Bradford (2014) 227 Cal.App.4th 1322, 1] 1336-1339) and were presumably considered andrelied upon in enacting Proposition 36 which requires that new conduct-basedcriteria be retroactively applied. (See Peoplev. Weidert (1985) 39 Cal.3d 836, 844 [enacting body deemed awareofexisting law]; People v. Scott (2014) 58 Cal.4th 1415, 1425 [new laws deemed enacted in light of existing law].) Under Guerrero andits progeny,the trier of fact deciding whethera prior conviction wasfor a serious felony based upon non-elemental conduct considers relevant portions ofthe entire record of conviction to determine what conductthe verdict reflects. (See People v. McGee (2006) 38 Cal.4th 682, 691, 706.) The inquiry is limited and does notinclude resolving conflicts in evidence and making additional findings of fact. (/d. at p. 706.) Thus, both what may be considered and the inquiry being madeare limited. Use of this complete Guerrero rule that limits the inquiry to the nature of the conviction, and nothing more, best comports with the language of Penal Code section 1170.126, subdivision (€), which provides that an inmate “is eligible for resentencing if... . (2) The inmate’s current sentence was not imposedfor any offenses appearing in... [subdivision (i1i)].”” (Emphasis added). As the court in Berry putit, subdivision (e) “details which inmatesare “eligible” for resentencing, based upon what they were sentencedfor originally.” (People v. Berry, supra, 235 Cal.App.4th at p. 1424 [emphasis original].) The courts of appeal, however, have struggled with the limitations that apply to such reviews. While all have agreed, as did appellant’s court here, that review is limited to the “record of conviction,” they have disagreed on whetherthat review is further 12 limited to reviewing only that portion of the record that explains the conviction, or whether such review can beofthe entire record, including evidence of charges of which the defendant was not convicted, or even which were dismissedaspart of a plea, or becausethe jury could not reach a verdict on them. The courts have also disagreed on the burden of proof applicable to the decision making, splitting between preponderance,as in the instant case, and beyond a reasonable doubt. (People v. Arevalo, supra.) In the instant case, appellant wastried on charges of stalking (Pen. Code, § 646.9, subd.(a)) based solely on letters that he sent to his wife from prison. While stalking requires that the defendant threaten the victim,it does not require that the defendant intend to actually harm her;rather, the statute specifically excludes from a proof requirementany intent to carry out the threat? while the testimony considered by the court here clearly showedthat appellant made threats that caused his wife to be afraid, the letters also demonstrated conflicting evidence where at times appellant wrote that he would hurt her while at other times he wrote that he would not actually do her harm 3 Section 646.9, subdivision (a), provides: “Any person whowillfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makesa credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking ....” “Credible threat” is defined as “a verbal or written threat . . . or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person thatis the target ofthe threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparentability to carry out the threat so as to cause the person whois the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat.” (§ 646.9, subd.(g).) 13 becausehestill loved her. The jury never had to resolve whetherhe intendedto actually harm her because that was neveran issue and wasirrelevant to the question of whether he made a credible threat. Althoughthetrial court here concluded that one always intends to do that which one threatens (CT 21), that is simply not the case where the crime is simply to cause one to be afraid, and it could easily be enough to cause oneto fear if whatthe defendant wants is either to reconcile with the victim, or to “pay her back” by causing her fear. Making her afraid might easily be enoughfor a stalking defendant, andis certainly enoughto be convicted ofthe crime. Intending to actually harm someone goes well beyond the elements of the crime, and well beyond any showing of what appellant here actually did or intended to do. Thus, appellant’s jury was never asked to resolve whether appellant had any intent other than to cause his wife to be afraid. The only things that the verdict and evidence reflect are that the appellant wroteletters that included threats that intended to cause and did cause the victim to be afraid for her safety. That is all that can be gleanedas to the nature of the conviction and conduct underlyingit in this case. (See People v. McGee, supra, 38 Cal.4th at 706; see also People v. Wilson (2013) 219 Cal.App.4th 500, 510.) On appeal, appellant argued that, under Guerrero, supra, the recall court was limited to considering only that evidence whichset forth the nature of the crime of which appellant was actually convicted. (/d. 44 Cal.3d at p. 345; see also People v. McGee (2006) 38 Cal.4th 682, 691 [relevant inquiry is whatis the nature or basis of the crime of conviction]; People v. Woodell (1998) 17 Cal.4th 448, 459 [“the ultimate questionis, of what crime wasthe defendant convicted’’].) The inquiry is limited and does not include 14 resolving conflicts in evidence and making additional findings of fact. (/d. at p. 706.) Thus, both what may be considered and the inquiry being madeare limited. The recall court here, and the appellate decision affirmingit, applied only half of the Guerrero rule - the part that limits the evidence considered to only the record of conviction without consideration of new evidence. Butinstead oflimiting the inquiry to a determination of what conduct the conviction reflects the substance of the offense, the recall court used the limited evidence to make new findings of fact that were not encompassedby the conviction. The Guerrero rule does not permit a court to look to the entire record of conviction and find new facts based upon the evidence there. (/bid.) As this Court stated in Guerrero, a review ofthe record of the prior conviction does notallow a “relitigation” of the circumstances of the crime. (People v. Guerrero, supra, 44 Cal.3d at p. 355.) Whatis relevant from the record of conviction is that evidence which showsthe nature of defendant’s conduct underlying the conviction. (People v. Woodell, supra, 17 Cal.4th at p. 459.) Thus, to determine whether a conviction encompassesrelevant conduct, the court’s inquiry is limited to identifying the “basis of the crime of which the defendant was convicted ” (People v. McGee, supra, 38 Cal.4th at p. 691 [emphasis added]), and that determination must be made by examiningonly the record ofthe prior proceedings. (Ibid. [relevant inquiry is whatis the nature or basis of the conviction]; see also People v. Woodell, supra, 17 Cal.4th at pp. 454-461; People v. Myers (1993) 5 Cal.4th 1193, 1198-1201; People v. Guerrero, supra, 44 Cal.3d at p. 355. [We “allow the trier [of fact] to look to the record of the conviction—butno further—.. .: it effectively bars the 15 prosecution fromrelitigating the circumstances of a crime committed years ago. . . ”].) This Court reiterated this view in People v. Trujillo (2006) 40 Cal.4th 165, 179- 180. At issue in the case was whether Trujillo used a weapon in committing the former offense such that the offense would qualify as a “strike.” In the prior case, the defendant had pled guilty to the charge and an allegation that he had used a weapon wasstricken. However, the defendant had told the probation officer in a post-plea interview that he had stabbed the victim with a knife. This Court held that the statement could not be used because the statementdid notreflect “the facts of the offense for which [the defendant] was convicted.” (/d. at p. 180 [“Defendant’s admission recounted in the probation officer’s report. . . does not describe the nature of the crime of which he was convicted and cannot be usedto provethat the prior conviction wasfor a serious felony.”] The appellate court in the instant case rejected the application of Guerrero because the court here wasnot increasing appellant’s sentence but was only determining whether his sentence should be decreased. (See Modification, p. 2.) In such a circumstance,said the court, there are no limitations other than thatthe recall court is limited to using the record of conviction. Appellant contends otherwise. Wherea case involves factual disputes that the trier of fact did not have to resolve to reach its verdict, a recall court cannot later make findings of such disputed facts to determine that the crime involved conduct making it a serious felony. Rather, the court must determine only the nature of the conviction - whether the conduct on which the conviction was basedclearly satisfied the requirements of a serious felony. (People v. McGee, supra, 38 Cal.4th at 706.) 16 Application of the full Guerrero rule provides parity between prospective and retrospective applications by requiring the retrospective application to be based only upon conduct that was implicitly pleaded and proved beyond a reasonable doubt, rather than upon additional findings madeon a limited record undera lesser standard of proof. The court determining eligibility may look beyond the mere elements of the offense to find that the conviction reflects disqualifying conduct, and thereby keep the conduct-based exceptions applicable retrospectively, but must do so based only upon conductthatis demonstrated by the conviction in light of the charges, the evidence, and the findings of the trier of fact at the initial proceedings. The court should look for what can be said to have already been pleaded and proved. (People v. McGee, supra, 38 Cal.4th at p. 706 [the court does not make “an independent determination regarding a disputed issueoffact relating to the defendant’s prior conduct”; the determination is not directed at the conduct itself, it is “a determination ofthe natureor basis of the prior conviction.”].) Therefore, considering the language ofthe statute, the historical context of the Three Strikes Law andits approachto findings of non-elemental, conduct-based factors in past convictions, and the goal of having retrospective application parallel prospective application, except where unreasonable dangerousnessis found, the statute must be read to anticipate the application of the complete Guerrero rule. Therefore, the court considering the Penal Code section 1170.126 petition is not free to make new findings of fact not reflected by the prior conviction, but rather must makethe factual finding of what facts the actual conviction reasonably reflect based uponthe state of the record in the underlyingtrial. 17 The modified Guerrero approach by the instant court retainslittle of the fairness that the rule was designed to provide and does not preclude “relitigation” of offenses as was this Court’s goal in Guerrero. Moreover, it further results in disparate application of the rules prospectively and retrospectively because, unlike with prospective application, the retrospective findings are made by a mere preponderanceofthe evidence with the evidence supporting it having been developed when the now-critical issue was not even relevant. Nothing in Proposition 36 suggests that this result was intended. Moreover, while it may technically be true that the recall court is not increasing appellant’s punishmentby its decision making,thereality is that appellant is being denied the benefit of the voters’ change to the Three Strikes Law that would apply to him butfor the fact that he is seeking retroactive application of the change and the court here is finding him ineligible for such application. Thus, for all practical purposes appellantis facing an increased sentence over that to which he would otherwise be entitled. That the recall court shouldbe able to deprive appellant of the sentence mandatedby the voters by ignoring the constraints of Guerrero, and making fact findings on the basis of disputed evidence, and doing sao on a preponderance standard simply because technically the court is not increasing the defendant’s sentencestrains credulity. Finally, this Court needs to resolve the issue regarding the burden ofproof. In People v. Osuna (2014) 225 Cal-App.4th 1020, 1040, the court held that the recall judge ruling on eligibility need only find the disqualifying factors by a preponderanceofthe evidence. In People v. Arevalo (2016) 244 Cal.App.4th 836, 852, the court held that Osuna was incorrect, and the standard must be beyond a reasonable doubt. Most recently, 18 the court in the instant case published its decision to hold that Arevalo was incorrect. The court did so simply by stating that this court was not convinced that a beyond reasonable doubt standard was appropriate given that preponderanceis the general standard and there has been “no showingthattrial courts will be unable to apply [the Proposition 36 rules]fairly and with due consideration.” (Slip opn. p. 5) The Arevalo court explained that the application of the beyond a reasonable doubt standard is necessary in part to satisfy federal due process concernsarising from the fact that the procedurerelates to the defendant’s liberty interests, even though those interests are diminished in the context of a recall and reduction of sentence. (People v. Arevalo, supra, 244 Cal.App.4th at pp. 849-852.) The court concludedthat these interests require a higher standard ofproof than a preponderance. It then held that the heightened standard had to be beyond a reasonable doubt in order to ensure that the retrospective operation of Proposition 36 reformsresult in the same sentencesas their prospective application as this Court in People v. Johnson (2015) 61 Cal.4th 674, 687 indicated was intended. (People v. Arevalo, supra, 244 Cal.App.4th at p. 853.) Arevalo did not hold that the constitution required the beyond a reasonable doubt standard. It held that the constitution required a higher standard than a preponderance, but that the need for parity between the prospective and retrospective application of the new rules required that the standard be beyond a reasonable doubt. (See People v. Arevalo, supra, 244 Cal.App.4th at p. 853) As the Arevalo analysis is more complete and compelling than either that of Osuna or the instant court, this Court should grant review to resolvethis split of authority and 19 adopt the Arevalo requirementthat eligibility be based upona finding of proof be beyond a reasonable doubt. Dated: August 19, 2016 Respectfully submitted, CALIFORNIA APPELLATE PROJECT JONATHANB. STEINER Executive Director Moke RICHARD B. LENNON Staff Attorney Attorneys for Appellant 20 WORD COUNT CERTIFICATION People v. James Belton Frierson 1 certify that this document was prepared on a computer using Corel Wordperfect, and that, according to that program, this document contains 4,182 words. RICHARD B. LENNON 21 OPINION 22 Filed 7/20/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FOUR THE PEOPLE, “ B260774 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA043389) v. JAMES BELTON FRIERSON, Defendant and Appellant. APPEALfrom an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Richard B. Lennon and Suzan E. Hier, by appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert C. Schneider, Deputy Attorneys General. This is a defendant’s appeal from the trial court decision rejecting his petition for resentencing under Penal Code section 1170.126, enacted by Proposition 36, the Three Strikes Reform Act of 2012. (All further code citations are to the Penal Code unless otherwise indicated.) That initiative measure allows inmates serving an indefinite life term under the Three Strikes law (§§ 667, subds. (b)-(1) & 1170.12) to petition the court for resentencing wherethe third strike conviction was for a felony not classified as a serious or dangerous crime. The initiative also disqualifies inmates serving a sentence imposedpursuantto section 667, subdivisions (€)(2)(C)(i) through (iii). The last of these, subdivision(iii), applies where “[d]uring the commission of the current offense, the defendant . . . intended to cause great bodily injury to another person.” FACTUAL AND PROCEDURAL SUMMARY The current offense in this case wasfor stalking, a violation of section 646.9. Underthe Three Strikes law, that offense along with defendant’s twoprior “strikes” resulted in a term of 25 yearsto life. Pursuant to Proposition 36, defendantpetitioned for recall of his sentence and resentencing. Following a hearing,the petition was denied. Thetrial court ruled that defendant wasineligible becausethe third strike offense was committed with intent to inflict great bodily injury to the victim. The stalking conviction was based onletters from defendant,sent to his wife from prison after she had informed him that she intended to endtheir relationship. In these letters defendant said he would “track her down,” that she should not and that he would not allow her to have another man, that because she had hurt him he would “hurt” her and that he would kill her for causing him so much pain. Later, after receiving divorce papers, defendant wroteher stating that he would do something bad to her because he could notlive without her, that she was his wife and he would “get” her for hurting him so badly. He wrote that he was not going to hit her but onlytalk to her about restarting the relationship, but he also wrote that he could notlet her leave and let someoneelse take her and that he was goingto fight for her; and do something “real bad” to her. Hecalled her attention to a newsstory about a woman whokilled her husband and then herself, and said that he would “get [her] for hurting [him] like this. Mark my word...” Following a hearing, based on these statements, the court ruled that defendant wasineligible for recall of the sentence he was serving or for resentencing because of his expressed intentto inflict great bodily injury on his wife. This appeal followed. DISCUSSION Section 1170.126, enacted by Proposition 36, provides in subdivision (e)(2), that an inmate is eligible for resentencing if his or her current sentence was not imposed for an offense appearing in (among other provisions) section 667, subdivision (e)(2)(C)(11); where, during commission ofthe offense, defendant“intended to cause great bodily injury to another person.” On appeal defendant argues that while he wrote the letters we have discussed, they do not show he intendedto inflict great bodily injury on his wife. He reasonsthat the basis of the trial court’s ruling wasthe fact of defendant’s conviction for stalking, a crime that does not require intent to carry out the threatened acts. It is true that the conviction was based on defendant’s threats. In determining an inmate’s eligibility for recall and resentencing under Proposition 36,the trial court may examineall relevant, reliable and admissible material in the record to determine the existence of a disqualifying factor. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048, 1051; and see People v. Guererro (1988) 44 Cal.3d 343, 355.) That is what the trial court did in this case. It is reasonable to infer, as the trial court did, that when defendant told his wife that he was going to get her, hit her, hurt her, and do something “real bad” to her to avenge what he perceived she had done to him, he meant whathe said. (6 Wigmore (Chadbourn rev. ed. 1976) § 1715 and generally | Witkin, Cal. Evidence (Sth ed. 2012), Hearsay, § 40, p. 833.) Putplainly, the trial court was entitled to infer, as it did, that defendant meant to do what he said he would do. In a supplemental brief defendantcites to a recent case, People v. Arevalo (2016) 244 Cal.App.4th 846 (4revalo)to argue that the burden of proof in ruling on an application for recall under Proposition 36 is with the prosecution,andthat burdenis proof beyond a reasonable doubt. Theinitiative providesthat the trial court shall determine eligibility of the defendantforrelief under its provisions. We understandthe correctallocation of the burdento be that it is for the defendant, as petitioner, to make a prima facie showing that the third strike conviction in his or her case was for a felony that qualifies under the initiative. But where the prosecutorclaimsthat strike or some other circumstance disqualifies the defendant for suchrelief, it is the prosecutor’s burdento provethat disqualification. (See People v. Superior Court (Kaulick) (2013) 215 Cal-App.4th 1279, 1301.) The issue then becomes: whatis the applicable standardforthat proof? Kaulick holdsthat it is proof by a preponderanceofthe evidence. (Ibid.) And this appears to be the generally accepted rule. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1040.) Relying on a concurring opinion in People v. Bradford (2014) 227 Cal.App.4th 1322, 1344 (by the author of the court’s opinion in that case), the Arevalo court concludesthat the standard must be greater than preponderance. The concurring opinion in Bradford suggested that the clear and convincing evidence standard be used. (/d. at 1350.) Arevalo, supra, 244 Cal.App.4th 846 finds this insufficient and concludes the prosecution mustproveineligibility beyond a reasonable doubt. (/d. at p. 852.) It does so in light of the substantial amountofprison time at stake for the defendant, the risk of error because ofthe “summary andretrospective nature of the adjudication,” and the “slight countervailing governmentalinterest given the People’s opportunity to provide new evidence”at the hearing. (/bid.) And, concern that with a lesser standard “nothing would preventthe trial court from disqualifying a defendant from resentencingeligibility consideration by completely revisiting an earliertrial, and tuming acquittals into their opposites.” (/d., at p. 853.) Weare not convinced. Preponderanceis the general standard under California law, and there is no showingthattrial courts will be unable to apply it fairly and with due consideration. Noris there a showing that they have failed to do so. We do not believe that a higher standard, let alone proof beyond a reasonable doubt, the highest standard possible, is constitutionally required. DISPOSITION The judgment(order denyingrelief) is affirmed. CERTIFIED FOR PUBLICATION EPSTEIN,P.J. Weconcur: WILLHITE,J. COLLINS,J. MODIFICATION 23 Filed 8/5/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, Vv. JAMES BELTON FRIERSON, Defendant and Appellant. THE COURT*: B260774 (Los Angeles County Super. Ct. No. GA043389) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGEIN JUDGMENT] It is ordered that the published opinion, filed July 20, 2016, be modified as follows: 1. In the fourth line ofthe first paragraph of the Discussion section, the code section subdivision citation is changed from “(e)(2)(C)(i1)” to “(e)(2)(C)(i); 2. The Roman Numeral“1”is inserted betweenthe first and second paragraph of the Discussion portion of the opinion; 3. In the second paragraphof the Discussion section following the citation to People v. Guerrero, insert “(Guerrero)”; 4. After the first paragraph of section I of the Discussion section,insert the following: Citing Guerrero and other cases, defendant arguesthatin ruling on a motion for resentencing under Proposition 36,the trial court is limited to a determination of “the narrow issue of whether the conviction was for qualifying conduct,” and that in ruling on the motion the trial court is not permitted “to simply review a transcript and, based on testimony,find the fact.” | Instead, defendant argues, “to determine whether a conviction encompasses relevant conduct, the court inquiry is limited to identifying ‘the basis of the crime of which defendant was convicted.’” (Citing People v. McGee (2006) 38 Cal.4th 682, 691.) Heargues, essentially, that the trial court mustrestrict its decisionto those facts and circumstances necessarily decided in the underlying conviction. Wedo notagreethatthe trial court is so restricted. Guerrero itself involved a determination that went beyond what necessarily had been decided in the prior conviction. The issue in that case was whether a prior conviction qualified as a “serious felony” underthe residential burglary provisions of Sections 667 and 1192.7, subd. (c), since the burglary statute in force when that crime was committed did not differentiate between residential and other burglary. (Guerrero, at p. 346.) A previous decision, People v. Alfaro (1986) 42 Cal.3d 627, had held the trial court could not decide that issue becausethe residential character of the burglary was not an element of the underlying crime. Overruling Alfaro on this issue, the Supreme Court held that in deciding whether the prior burglary wasof a residence, the court could “look to the record ofthe conviction—but nofurther” in making its decision. (Guerrero, at p. 355.) Later decisionsclarified that the “record of conviction”did not extend to such matters as the defendant’s post-conviction admission to a probation officer that he had used a knife in committing the underlying crime (People v. Trujillo (2006) 40 Cal.4th 165, 179), or to factual allegations in charges dismissed in a plea bargain (People v. Berry (2015) 235 Cal.App.4th 1417, 1425). But the term does include material whichis part of the record, such as excerpts from preliminary hearing transcripts. (People v. Reed (1996) 13 Cal.4th 217, 223.) If anything, Guerrero is a fortiori to this case, since it deals with evidence bearing on anincrease in punishment, such as whethera prior conviction wasfor a “serious felony.” In a Proposition 36 proceeding, the court does not consider an increase in punishment, but only whether the convicted defendantis entitled to the reduction in punishment afforded by that law. If he or sheis ineligible, the result is that punishment is not reduced; it cannotbe increased. That is why there is no right to a jury trial on issues going to the defendant’s entitlement to a sentence reduction, or, as we next discuss, to the enhanced burden of proof requiredto provefacts that would increase punishment. 5. The Roman Numeral “II”is inserted following the above four paragraphs. Appellant’s petition for rehearing is denied. This modification does not change the judgment. *EPSTEIN,P. J., WILLHITE,J. COLLINS, J. PROOF OF SERVICE I ama citizen of the United States, over the age of 18 years, employed in the County of Los Angeles, and not a party to the within action; my business address is 520 S. Grand Avenue, 4"" Floor, Los Angeles, California 90071. I am employed by a memberof the bar of this court. On August 19, 2016, I served the within PETITION FOR REVIEW in said action, by emailing a true copy thereofto: Kamala D. Harris, Attorney General docketingLAawt@doj.ca.gov in said action, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows, and deposited the same in the United States Mail at Los Angeles, California. Jackie Lacey, District Attorney Ronald L. Brown, Public Defender Denise Moehlman, Deputy District Patrick Hare, Deputy Public Defender Attorney 19000 Foltz Criminal Justice Center 18000 Foltz Criminal Justice Center 210 West Temple Street 210 West Temple Street Los Angeles, CA 90012 Los Angeles, CA 90012 James Frierson Clerk, Los Angeles Superior Court P-19779 Criminal Courts Building P.O. Box 4490 210 West Temple St. Lancaster, CA 93539 Room M-6 Los Angeles, CA 90012 Court of Appeal For Delivery to Hon. William C. Ryan Second Appellate District Division Four 300 S. Spring Street Los Angeles, CA 90013 (E-filed) J declare under penalty of perjury that the foregoing is true and correct. Executed August 19, 2016, at Los Angeles, California. JACOUELINE GOMEZ Ca 24